Last week in Lindsay, Ontario, reports came out of an intruder who broke into a man’s apartment in the early hours of the morning. Police were called at approximately 3:20am to respond to reports of an “altercation”. The resident, now identified as Jeremy David McDonald, awoke to the intruder being in the apartment and a fight broke out between them. It has now been reported that McDonald was wielding a knife during the fight, resulting in the intruder being seriously injured and needing to be airlifted to a Toronto hospital. McDonald was subsequently charged with aggravated assault and assault with a weapon for the serious harm caused to the intruder as he ‘did endanger a life’. McDonald’s lawyer has since stated that McDonald “maintains his innocence and was acting within his rights to defend himself and his property.” This is a clear argument of ‘acting in self-defence’ in the face of perceived harm.
The alleged intruder, who is also from Lindsay, was charged with multiple offences contrary to the Criminal Code. Those offences include possession of a weapon for a dangerous purpose, break and enter, theft, mischief under $5,000, and failing to comply with probation. Police confirmed he was wanted on unrelated offences.
Premier Doug Ford suggested the charges laid against McDonald show something is broken.
“I know if someone breaks into my house or someone else’s, you’re going to fight for your life, This guy has a weapon… you’re going to use any force you can to protect your family.”
Incidents like this have historically been controversial. The cliche of “a man’s home is his castle” relates to this mindset, where people want to be able to defend themselves and their homes against potential threats without fear of criminal prosecution for their reactions. There needs to be careful balancing of what actions are appropriate when acting in self-defence. Section 34(1) of the criminal code provides a defence for any person who can prove that their actions in response to a perceived threat were reasonable, and thus, justifiable. The Ontario Court of Appeal in R v Bengy, 2015 ONCA 397 at paragraph 28 has provided a clear and concise guideline for how self-defence can be applied, which has also been recognized by the Alberta Court of Appeal in R v Rasberry, 2017 ABCA 135:
[28] The test for self-defence was, therefore, simplified into three basic requirements, applicable to all cases:
(i) Reasonable belief (34(1)(a)): the accused must reasonably believe that force or threat of force is being used against him or someone else;
(ii) Defensive purpose (34(1)(b)): the subjective purpose for responding to the threat must be to protect oneself or others; and
(iii) Reasonable response (34(1)(c)): the act committed must be objectively reasonable in the circumstances.
If this can be proven beyond a reasonable doubt, then the person who is claiming self-defence will not be found guilty.
It has been reported that the intruder was charged with possession of a weapon for a dangerous purpose, but it is not clear at this time if this was the knife McDonald used to defend himself with or not. When looking at the actions of McDonald and any argument he and his lawyer may make utilizing self-defence against aggravated assault and assault with a weapon, the circumstances surrounding the knife will be highly relevant. If the intruder did indeed have a weapon, and McDonald found the knife as a weapon to use as his own in the fight, this would bring the self-defence analysis a lot closer to an objectively reasonable response per section 34(1)(c) of the Criminal Code. It will also be highly relevant as to whether McDonald stopped using force once the intruder was incapacitated. The Alberta Court of Appeal in R v Rasberry found that the trial judge’s analysis of self-defence was correct, where the analysis of whether the retaliatory force was reasonable will largely come down to if the defender stopped after their attacker was disabled. If the defender continued to use force after the attacker was disabled, there is an argument to be made by the Prosecution that the defender’s actions go beyond self-defence.
Unfortunately, without the details of the offence, it can’t be determined if the defence in the Lindsay, ON case would be considered proportionate.
In 2012 a man in Okotoks, Alberta, was charged when he wounded a suspect who had trespassed on to his property. The man, Eddie Maurice, was charged with aggravated assault, pointing of a firearm, and careless use of a firearm, after he fired a warning shot which ricocheted and wounded the trespasser. Tonii Roulston defended this case and the charges were successfully withdrawn in 2018 after extensive research, and arguments supporting the rights to defend yourself and your property.
Self-defence is difficult to navigate in circumstances of defending property. Owners of property need to be careful as to what degree of force is necessary to remove a trespasser. This is easier said than done, as in some scenarios, like the one involving McDonald, a resident or owner of property may have to make split second decisions which are fuelled by adrenaline and high degrees of emotion.If you have been charged with a criminal offence for protecting yourself or your property, Roulston Urquhart will fight fiercely on your behalf so that you and others won’t be subjected to punishment for retaliating against a threat.
